Tuesday, June 23, 2009

And Also at the Supreme Court

Seven cases remain for decision at SCOTUS this term. Two are of particular interest to us criminal defense types.

Melendez-Diaz v. Massachusetts is another in a line of cases about determining when the rule the Court set down in Crawford v. Washington applies. Crawford, you'll recall, says that the government cannot use hearsay that's "testimonial" against a defendant in a criminal trial. The Sixth Amendment will not abide it. Now, the Court is to decide whether a state forensic analyst’s laboratory report prepared for use in a criminal prosecution is “testimonial” evidence.

In layman's terms, the question is whether lab reports get admitted because, heck, of course they're always accurate so there's no need to cross-examine the folks who did the tests and wrote the reports? Crawford and cases following it make clear that the reliability of a statement isn't the issue - it's the right to confront and cross-examine that matters. That right is tied to the fundamental idea that ours is an adversary system. It's not about the search for "truth" whatever that might be (though one hopes that it frequently comes within reach of that). Rather, it's about proof and evidence and the testing of that evidence.

That's why the defense in a criminal case has different duties than the prosecution. As Justice White explained in a separate opinion in United States v. Wade,

Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent. They must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the crime. To this extent, our so-called adversary system is not adversary at all; nor should it be. But defense counsel has no comparable obligation to ascertain or present the truth. Our system assigns him a different mission. He must be and is interested in preventing the conviction of the innocent, but, absent a voluntary plea of guilty, we also insist that he defend his client whether he is innocent or guilty. The State has the obligation to present the evidence. Defense counsel need present nothing, even if he knows what the truth is. He need not furnish any witnesses to the police, or reveal any confidences of his client, or furnish any other information to help the prosecution's case. If he can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course. Our interest in not convicting the innocent permits counsel to put the State to its proof, to put the State's case in the worst possible light, regardless of what he thinks or knows to be the truth. Undoubtedly there are some limits which defense counsel must observe but more often than not, defense counsel will cross-examine a prosecution witness, and impeach him if he can, even if he thinks the witness is telling the truth, just as he will attempt to destroy a witness who he thinks is lying. In this respect, as part of our modified adversary system and as part of the duty imposed on the most honorable defense counsel, we countenance or require conduct which in many instances has little, if any, relation to the search for truth.

Of course, given what we now know about the use of forensics in the courtroom (see, for instance, this report from the National Research Council and here and here), you can't trust those lab tests or reports anyway. So even if the issue were reliability the reports shouldn't come in by themselves.

Whether the Fourth Amendment prohibits public school officials from conducting a strip search of a student suspected of possessing and distributing a prescription drug on campus in violation of school policy.

You'll remember that this is the case in which the male Justices of the Supreme Court, at oral argument, were simply unable to grasp why a thirteen-year old girl would be the least disturbed by being stripped to her bra and panties and forced to loosen and shake the bra and to lift the panties away from her body to ensure that she had no hidden ibuprofen. Justice Breyer noted that

all they did was ask her to strip to her underwear, period. Nobody saw anything else.

The snickering must have been evident to all when, for instance, Justice Souter tried to establish what seems a self-evident fact by asking:

But you are -- you are saying basically there is -- there is no general understanding that people carry ibuprofen in -- in their undergarments.

Counsel for the school board, though not particularly happy about it, wouldn't rule out body cavity searches.

I see your concern. That's to be left up to the local governments, Your Honor.

And, of course, this is the case in which Justice Breyer amazed his colleagues:

So what am I supposed to do? In my experience when I was 8 or 10 or 12 years old, you know, we did take our clothes off once a day, we changed for gym, okay? And in my experience, too, people did sometimes stick things in my underwear --

It appears that only Justice Ginsburg, of course the only one who had ever been a teen-age girl, understood the acute embarrassment at issue. And while there are hints of her frustration in the argument, it became evident when she spoke with Joan Biskupic of USA Today. As Biskupic reported:

Her status as the court's lone woman was especially poignant during a recent case involving a 13-year-old girl who had been strip-searched by Arizona school officials looking for drugs. During oral arguments, some other justices minimized the girl's lasting humiliation, but Ginsburg stood out in her concern for the teenager.

"They have never been a 13-year-old girl," she told USA TODAY later when asked about her colleagues' comments during the arguments. "It's a very sensitive age for a girl. I didn't think that my colleagues, some of them, quite understood.

And you know, it's not just ibuprofen and not just this one case. It sometimes seems as if strip searches are almost routine in the public schools.

I represented some 11th grade nursing students were strip searched after one student thought she might have left a gift card in her car and another wondered about some cash that may have been misplaced. (The case is ongoing.) I also represented a group of 5th graders who were strip searched after one of them was seen smoking a cigarette across the street from school and before the school day. My experience is hardly unique.

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About Me

Criminal defense lawyer, public defender, civil libertarian (former Legal Director of American Civil Liberties Union of Ohio), anti-death penalty activist, public speaker.
After many years in private practice, I'm now a public defender in the Cuyahoga County Public Defender's Office.
My first career was English Professor. I studied medieval and renaissance English Literature, taught literature, film, and composition. I've been a film critic.
NONE OF WHAT APPEARS IN THIS BLOG SHOULD BE TAKEN AS LEGAL ADVICE.
ALSO, PLEASE NOTE THAT THE STUFF I WRITE IS MINE ALONE. I STAND MORE OR LESS BEHIND IT, BUT I DO NOT SPEAK FOR ANY OTHER LAWYER OR ANY GROUP OF LAWYERS AND CERTAINLY NOT FOR THE OFFICE OF THE CUYAHOGA COUNTY PUBLIC DEFENDER.